Layman v. Hughes
| Decision Date | 29 November 1898 |
| Docket Number | 18,380 |
| Citation | 51 N.E. 1058,152 Ind. 484 |
| Parties | Layman v. Hughes et al |
| Court | Indiana Supreme Court |
Rehearing Denied April 21, 1899.
From the Putnam Circuit Court.
Affirmed.
G. C Moore, T. T. Moore and S.D. Coffey, for appellant.
F. D Ader and H. H. Mathias, for appellees.
The appellant, Layman, sued the appellee, Hughes, as treasurer of Putnam county, to enjoin the collection of certain assessments upon appellant's land to defray the expense of the construction of the Mt. Meridian and Putnamville free macadamized road. The other appellees, who were defendants below, filed cross-complaints setting up the same facts substantially set forth in the complaint, the only difference being that each cross-complaint refers to the land owned by such cross-complainant, and assessed for such road, instead of the land owned by the plaintiff. Each defendant filed a separate cross-complaint. Demurrers to the complaint and to each cross-complaint were sustained for want of sufficient facts, and, the plaintiff and cross-complainants failing to amend or plead further, judgment was rendered that the plaintiff and cross-complainants take nothing by the complaint or cross-complaints. These rulings are called in question by the assignments of error. There are eighteen separate assignments of error under different titles. The first one makes the plaintiff below the sole appellant, and the defendants below, or cross-complainants, appellees. In the other seventeen assignments, one or more of the cross-complainants are made appellants, and the balance of them are made appellees, along with the plaintiff below.
This being a vacation appeal, the proper parties are required to be made. All of the parties to the appeal are made both appellants and appellees. And, unless we regard this as eighteen separate appeals, which is not authorized in one transcript, we would probably be justified in dismissing the appeal. We held in Gregory v. Smith, 139 Ind. 48, 38 N.E. 395, that the same party cannot be both appellant and appellee. But, as it is not discussed or noticed in the argument, we will not pass upon it.
The case of Bowen v. Hester, 143 Ind. 511, 41 N.E. 330, was an action to enjoin the collection of assessments made by the same order of the board of commissioners, and for the same irregularities relied on in this action, but by different landowners from those involved here. The record shows that the trial court was controlled in sustaining the demurrers by the law as declared in that case. We held in that case that the defects in the proceedings of the board were mere irregularities that did not affect the jurisdiction of the board and that the record showed that it had complete jurisdiction and that its orders and judgment, in establishing the road and making the assessments, could not be collaterally impeached by an injunction.
In one of the briefs of appellant's counsel it is substantially conceded that that case is decisive of this, but it is contended that that case was wrongly decided, and ought to be overruled. It is contended that that case is in conflict with Fulton v. Cummings, 132 Ind. 453, 30 N.E. 949. In the latter case, on appeal from the board to the circuit court, it was attempted to show that there were other lands not reported benefited, that were actually benefited. This offer was rejected in the circuit court, and its action affirmed in this court, because no such question was raised in the commissioners' court by attacking the report of the viewers before the board. This court there said: "Unless some such action was taken, we think the parties interested are bound by the report of the viewers as to the limit of the territory to be assessed." It is therefore urged that the language, "the territory sought to be assessed," as used in the statute, means the lands embraced in the report of the viewers. The whole case shows that no such thought existed in making the decision. If that were so, as soon as a report of viewers is made, showing certain land benefited within the two-mile limit, that would end the controversy even though other lands were within the two-mile limit actually benefited, but not so reported. If the report of the viewers, leaving such actually benefited lands out of such report, excludes the jurisdiction of the board as to such omitted lands, as is contended by appellant, then such jurisdiction does not depend on facts but on mistakes. But this court there explicitly denied such a construction of the statute by saying: "We do not hold that the parties interested may not, upon the return of the report of the viewers, attack it before the board by proper pleading, upon the ground that it does not include all the land benefited, and procure new viewers and a new report; but no such question is presented here, for nothing of the kind was attempted." Now if such irregularities and defects cannot be inquired into on appeal from the board to the circuit court, simply because they were not attacked before the board, there is much greater reason why they cannot be inquired into on a collateral attack by injunction. That case is not in point here, because this is a collateral attack, and that was a direct attack by appeal, the purpose of which is in the nature of an attempt to correct errors by a trial de novo.
An injunction against a judgment establishing a gravel road, and making assessments therefor, proceeds upon the idea that...
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